The latest: from aggravating factors to federal indictments

legal insights
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Federal indictments, aggravating factors for Derek Chauvin, a continued state trial for the three other former officers charged with killing George Floyd. What does it all mean? 

Let’s talk about the federal grand jury indictments against all four former MPD officers. Think about state and federal courts as two trains on different, but parallel, tracks. State court prosecutors usually file charges in what is called a complaint. Charges in federal court are returned in an indictment by a federal grand jury, not the prosecutor. Both complaints and indictments are supposed to be based on, “probable cause,” a very low standard meaning that it is probable that a crime was committed and that the accused committed it. It is not proof beyond a reasonable doubt, the standard required to convict at trial.  

The 12 people who convicted Chauvin on the state court charges served on what is called a petit jury.  They were summoned from Hennepin County, and after their service they were dismissed.  Because the federal court has jurisdiction over most of Minnesota, federal grand jurors can be summoned from throughout the state and they serve about three days a month for a year.  There must be between 16 and 23 grand jurors, but a quorum of 16 must be present to hear evidence in a case.  At least 12 people must agree to the indictment. 

Grand jury proceedings are secret, and they are completely controlled by the prosecutor. There is no defense lawyer present, nor is the accused allowed to be there, unless he opts to testify.  The judge’s only role is to read preliminary instructions to the grand jurors, after which the judge leaves. The proceedings are recorded but they can only be released by court order.   

The federal indictments against the former officers sound very different from the state court charges because they are based upon violations of Floyd’s federal constitutional rights. Instead of seeing familiar words such as murder or manslaughter, the indictments outline how three of the former officers (Chauvin, Tou Thao, and J. Alexander Kueng) willfully deprived Floyd of his right to be free from unreasonable force under the Fourth Amendment, and how all four of the accused willfully deprived Floyd of his right to be free from their deliberate indifference to his serious medical needs under the Due Process Clause of the Fourteenth Amendment. 

Aggravating Factors

We learned last week that Judge Peter Cahill found four of the five aggravating factors that were proposed by the state after Chauvin’s conviction, which will allow, but not require, him to depart upward from the Minnesota Sentencing Guidelines. These are facts, proven at trial, suggesting that this crime was more serious than the typical second-degree (unintentional) murder. 

The maximum sentence under the state guidelines is 180 months or 15 years. Given the aggravating factors, the judge can probably impose up to a double departure without being reversed by the court of appeals. This would be 360 months or 30 years. Chauvin is unlikely to get the maximum sentence under the statute, which is 40 years. He will be sentenced on June 25 at 1:30 pm. 

It’s interesting to speculate about why Chauvin has been indicted in federal court after being convicted in state court, which is somewhat uncommon. The federal sentencing guidelines are more complicated than their state counterpart, but Chauvin could be looking at more time, especially if he chooses to go to trial and is convicted.  He could also attempt to negotiate doing his time in a federal prison facility. 

The government could make a plea offer conditioned on Chauvin’s agreement to give up his right to appeal his federal conviction.  We can expect an appeal from his state court conviction, but whatever relief he might receive from the MN Court of Appeals—which is unlikely, in my opinion—would be largely irrelevant if he is doing federal time.  

We also recently learned that Judge Cahill has continued the other three former officers’ state court trial to March of 2022.  Although the date for the federal trial date has not yet been scheduled, Cahill indicated that the reason he continued the trial was to allow the federal trial to go first. 

Will the federal trial go forward?  Probably the safest thing to say is that there are many conversations going on behind closed doors, which may or may not lead to a settlement.  The incentive for the three former officers is that they’ve seen Chauvin’s trial and the verdict.  They are now looking at more time if convicted on the federal indictment, as well as having to face a state court trial. There may be a benefit for them to wrap up both cases in one agreement, but that probably depends on the numbers.

What’s in it for the prosecutors?  Not putting traumatized witnesses and the community through another trial.  The state charges may be more difficult to prove than they were for Chauvin, given the different levels of participation of the other three former officers.  There is also no such thing as a sure conviction.

Coming up with a global resolution makes sense, but, once again, it’s all in the numbers.  Stay tuned. 

About Mary Moriarty

Mary Moriarty was a public defender for 30 years, most recently for Hennepin County. She welcomes readers' responses to mmoriarty@spokesman-recorder.com.

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